Opinion
4-22-0440 4-22-0441 4-22-0442 4-22-0443 4-22-0444
10-13-2022
In re A.E., Ne.W., Ny.W., C.T., and K.T., Minors v. Shawn W., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Peoria County Nos. 18JA372, 18JA373, 18JA374, 18JA375, 19JA452 Honorable Terence M. Patton, Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Justices DeArmond and Zenoff concurred in the judgment.
ORDER
CAVANAGH, JUSTICE
¶ 1 Held: The appellate court affirmed, holding the trial court's findings that respondent was unfit and that the termination of respondent's parental rights was in the minors' best interests were not against the manifest weight of the evidence.
¶ 2 In October 2018, the State filed petitions for adjudication of wardship concerning four minor siblings: A.E. (born July 28, 2014); Ne.W. (born August 6, 2015); Ny.W. (born August 6, 2015); and C.T. (born June 1, 2018). The minors were adjudicated neglected and subsequently made wards of the court. In December 2019, the State filed a petition for adjudication of neglect relating to a subsequently born minor, K.T. (born December 5, 2019). She was also adjudicated neglected and made a ward of the court. Thereafter, the State filed a petition to terminate the parental rights of the minors' mother, respondent Shawn W. The trial court found respondent to be unfit and further found it was in the minors' best interests to terminate her parental rights. She appeals, claiming the court's findings were against the manifest weight of the evidence. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On October 16, 2018, before K.T. was born, the State filed petitions for adjudication of wardship, alleging minors A.E., Ne.W., Ny.W., and C.T. were neglected when respondent violated a safety plan implemented after a domestic-violence incident between C.T.'s father, Devante T., and respondent. Devante physically attacked respondent as she held C.T. in her arms and while the other minors were in the home. Ne.W. received a cut on his arm during the altercation. During the investigation of the incident and because there had been prior incidents, a safety plan was put into place. The plan prohibited Devante from having any unsupervised contact with the minors and respondent was prohibited from supervising any contact. A few days after the safety plan was put into place, respondent, Devante, and the minors were seen together. Accordingly, on October 15, 2018, the Department of Children and Family Services (DCFS) took the minors into protective custody based on respondent's violation.
¶ 5 Upon physical examination of the minors, with the exception of then four-month- old C.T., each was found with bruising or, in Ny.W.'s case, a burn on her chest. Respondent admitted hitting the minors with a belt and claims she contacted emergency services regarding the burn, though there is no record of treatment. The fathers of the minors, including Devante, are not parties to this appeal.
¶ 6 DCFS placed the twins, Ne.W. and Ny.W. in the same foster home, while A.E. and C.T. were placed together in a separate foster home.
¶ 7 On January 8, 2019, the trial court entered both an adjudicatory order upon respondent's stipulation and a dispositional order, finding respondent unfit and making the minors wards of the court.
¶ 8 Upon K.T.'s birth in December 2019, the State filed a petition for adjudication of neglect based on the status and factual circumstances of the siblings' cases. DCFS took K.T. into protective custody and, upon her release from the hospital, placed her in the same foster home as C.T. and A.E.
¶ 9 On March 10, 2020, the trial court entered both an adjudicatory order upon respondent's stipulation and a dispositional order, finding respondent unfit and making K.T. a ward of the court.
¶ 10 On May 24, 2021, the State filed a petition for termination of parental rights as to all five minors. The petition alleged respondent was unfit in that she failed to make reasonable progress toward the return of the minors during any nine-month period following adjudication, namely between January 27, 2020, and October 27, 2020 (750 ILCS 50/1(D)(m)(ii) (West 2020)). Upon the parties' agreement, in September 2021, the trial court entered an order amending the relevant time period to March 11, 2020, to December 11, 2020.
¶ 11 On May 3, 2022, the trial court held respondent's fitness hearing. For the State's case, the court considered the testimony of Brooke Matykiewicz, the DCFS caseworker during the majority of the relevant time period (with the exception of the last ten days). As she recalled, during this time period, respondent did not (1) complete a drug and alcohol assessment, (2) consistently participate in her random drug drops, (3) complete her domestic-violence program, (4) participate in counseling, or (5) consistently attend weekly visitation, missing more than half. In fact, respondent was terminated from her domestic-violence program for attendance reasons on four occasions. Respondent did complete her psychological evaluation and parenting course. However, in Matykiewicz's opinion, it was not safe to return the minors to respondent's care.
¶ 12 On cross-examination, Matykiewicz acknowledged respondent had COVID-19 and was being treated for a pelvic fracture during the relevant timeframe, which, according to respondent's counsel, may have accounted for her lack of participation in services. However, on redirect examination, Matykiewicz testified she viewed videos posted on social media of respondent dancing, despite her pelvic injury. However, Matykiewicz acknowledged she did not know when such videos were filmed.
¶ 13 Upon questioning by the trial court, Matykiewicz testified respondent completed 2 out of 18 requested drug drops.
¶ 14 For the presentation of her evidence, respondent testified she was in a wheelchair until June 2020 due to injuries (her fractured pelvis) sustained in a September 2019 car accident. She was pregnant with K.T. at the time of the accident, which put an additional strain on her pelvis. After getting out of the wheelchair, she was "on a high pain pill" and attended a pain clinic. Her doctors did not want to "push the disc in [her] back" while she was so young, as it would cause additional pain as she aged. According to respondent, the doctors decided to "put [her] on all this medication" for pain. These circumstances "interfered" with her ability to complete services, in that transportation to and from services and visitation was nearly impossible for her. She was unable to pack and carry meals for the five minors on public transportation and having Devante miss work to take her would jeopardize his employment. She said she "wouldn't even be able to bond with [her] children because [she would] be in so much pain from it." She testified she was unemployed because the "courts told [her] that [she] didn't have to work as long as he [is]." However, she was "recently" working full time even though she was "still in pain." She was "pushing through because at the end of the day [she] still [has] five children to raise." She said she was in school to be a paralegal.
¶ 15 Respondent testified it was not true that she was "kicked out of domestic violence" services. She said she was attending a perpetrator's domestic-violence class, not a victim's class. However, she learned that, regardless of her status, domestic violence affects the minors. She explained:
"[I]t affects their mindset throughout the day, their relationships with friends, their growth and development, their mindset to how they respond to their peers, their mindset to how they respond to situations. It affects their stability. It affects their relationship with you because they don't know if they are safe. They don't know if you are safe. And if you are not safe, then they are not safe and that's not a safe environment."
¶ 16 Respondent testified she took the domestic-violence-parenting course, domestic- violence-victim parenting course, domestic-violence-victim course, and domestic-violence-perpetrator course. She also said she participated in individual counseling with Summer Barlota. She said she had to reschedule "a few" of those sessions most likely because she was "always tired" from "all the medication" she was taking. She said she completed the psychological evaluation.
¶ 17 Respondent next called Allison Park, the DCFS caseworker between December 2 and 11, 2020. Park testified respondent did not successfully complete the domestic violence perpetrator's course and did not start the victim's course.
¶ 18 Over objection, the trial court allowed the State to reopen its case to call Park as its witness. Park testified she was assigned the case after Matykiewicz left on December 1, 2020. She reviewed the case with Matykiewicz and was able to conclude that, by December 11, 2020, respondent had not successfully completed her (1) drug and alcohol assessment, (2) domestic violence course, or (3) individual counseling. However, she was "cooperative." In Park's opinion, it was not safe to return any of the minors to her care as of December 11, 2020.
¶ 19 At the close of testimony, respondent's counsel asked the trial court to take judicial notice of the adjudicatory order, dispositional order, and permanency-review orders "for benchmark purposes."
¶ 20 After considering the evidence and arguments of counsel, the trial court found the State had sufficiently proved, by clear and convincing evidence, respondent was unfit for failing to make reasonable progress toward the return of the minors to respondent's care during the nine-month period of March 11, 2020, to December 11, 2020. See 750 ILCS 50/1(D)(m)(ii) (West 2020). The court found respondent's "core services," based on the petition for adjudication and the dispositional order, were domestic violence and substance abuse. To address these concerns, respondent was to participate in domestic-violence classes, individual counseling, and random drug drops. According to the court, evidence of (1) respondent's participation, or lack thereof, in only 2 of 18 requested drug drops, (2) no successful completion of domestic-violence classes, and (3) no successful completion of counseling was sufficient to find the State had proved the allegation respondent was an unfit person by clear and convincing evidence.
¶ 21 On May 17, 2022, the trial court conducted a best-interest hearing. Park testified the minors had been in their respective traditional foster homes since case opening and, in K.T.'s case, since birth. The twins, Ne.W. and Ny.W., were placed in a home together, while A.E., C.T., and K.T. were together in a different home. All needs were being met. The twins were being assessed to determine whether they needed "extra services" at school. Both were involved in ongoing counseling, as was A.E. Park testified C.T. and K.T. "seem[ed] to be fairly on track," though K.T. received early intervention services for speech at daycare.
¶ 22 According to Park, each foster home was a loving, safe, and secure placement. They all seemed to have healthy parent-child relationships. The twins referred to their foster parents as "mom" and "dad," have a "well-bonded relationship with each," and have expressed their desire to remain in the home.
¶ 23 In Park's opinion, C.T. and K.T. were bonded to their foster parents and often sought attention and comfort from them. As for A.E., Park said she had observed her openly express to the foster parents her frustrations as well as her excitement about events involving school or friends.
¶ 24 Park testified (1) the caregivers provided for each of the minor's emotional needs, (2) each minor looked to their respective caregivers for safety and security, (3) the caregivers ensured each minor's medical needs were met, and (4) the caregivers supported the minors' background, including their family, culture, and identity. The minors each had a strong bond with their caregivers and seemed to feel loved and secure.
¶ 25 Park explained there were two biological children in the home with the twins. All six individuals in the home interacted with and treated each other as family. The twins referred to the biological children in the home as their brother and sister. In the home with A.E., C.T., and K.T., there were also two biological children. According to Park, they were all bonded to each other.
¶ 26 Park testified Ne.W., Ny.W., C.T., and K.T. have a stronger bond with their respective caregivers than with respondent. In fact, the twins had expressed their desire to not go to visits and had been excited when any visits were cancelled. C.T.'s and K.T.'s stronger bond with their foster parents "primarily ha[d] to do with the length of time they've been in care and primarily due to the fact that they have lived for the majority of their life in their current foster placement." As for A.E., Park said, she had the strongest bond with respondent of all the minors but still, A.E.'s bond with her foster mother was stronger than that with respondent. According to Park, A.E. "respond[ed] semi-fearfully" toward respondent.
¶ 27 Park testified the foster parents had expressed their willingness to provide permanency for the minors in their respective care. And she felt it was in the minors' best interests to terminate respondent's parental rights and keep each minor in their current placements.
¶ 28 On cross-examination, Park testified respondent had completed her services.
¶ 29 Devonte's attorney called Latonia Jones, the visitation supervisor at Tri-County Urban League. Jones's testimony, as it related to respondent, was that A.E. did not appear fearful of respondent and was excited to visit her. In fact, in Jones's opinion, none of the minors acted fearful of respondent and appeared bonded with her. At the close of Jones's testimony, counsel asked the trial court to take judicial notice of a September 30, 2021, report prepared by the court appointed special advocate (CASA), who did not testify in person, indicating A.E. had advised that, although she enjoyed staying at her foster home, she wanted to go home to her mother and family. The court obliged and took judicial notice though there was no indication in the record the court considered this report.
¶ 30 Respondent called Marilyn Giles, an employee at Tri-County Urban League, who testified she had transported the twins to visits for the past four months. According to Giles, they were not fearful of respondent or Devonte and wanted to attend the visits. In Giles's opinion, the twins were bonded with respondent.
¶ 31 Next, respondent called Robyn Owens, who testified she had known respondent for approximately 10 years and had been her work supervisor for approximately one month. Owens said she had witnessed respondent and her older children together before they were taken into care. In Owens's opinion, the older minors were bonded to respondent and did not seem fearful of her.
¶ 32 Finally, respondent testified on her own behalf. She said she had a "very high, strong bond" with the minors, as they all sought her attention during visits. She testified she was employed and had a suitable residence for the minors. She said she would be able to provide for their food, shelter, health, and clothing. Respondent claimed the minors loved Devante and did not act fearful of him. According to respondent, the minors wanted to return to her care and she "want[ed] to be a mom again."
¶ 33 After considering the evidence and arguments of counsel, the trial court determined it was in the best interests of the minors to terminate respondent's parental rights. In particular, the court noted the length of time the minors had been in foster placement, the fact their needs were being met in their respective placements, and the bond each had with their foster parents. The court found the State had carried its burden of proving by a preponderance of the evidence that termination was in the minors' best interests.
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
¶ 36 On appeal, respondent challenges the trial court's fitness and best-interests findings, claiming they were against the manifest weight of the evidence. We affirm.
¶ 37 A. Unfitness Finding
¶ 38 Respondent asserts the trial court erred in finding she was an unfit parent for failing to make reasonable progress toward the minors' return to her care during the nine-month period of March 11, 2020, through December 11, 2020. Relying on the First District's decision in In re Gwynne P., 346 Ill.App.3d 584 (2004), respondent claims the evidence clearly showed she "made demonstrable steps" toward the return of the minors by attending, participating in, and completing her court ordered tasks. Id. at 595-96. Namely, she contends she attended a domestic violence course; completed a psychological assessment; completed a parenting course, participated in a domestic-violence-parenting course; and participated in individual counseling. She notes she attended weekly visits, missing some due only to transportation logistics. She claims completing only 2 out of 18 required drug drops should not reflect negatively upon her due to the transportation issues and there being no indication she was "taking any hard, illegal drugs." As we will explain below, we disagree with respondent's assessment of the evidence presented.
¶ 39 In a proceeding to terminate parental rights, the State must prove parental unfitness by clear and convincing evidence. In re N.G., 2018 IL 121939, ¶ 28. A trial court's finding of parental unfitness will not be disturbed on appeal unless it is against the manifest weight of the evidence. Id. ¶ 29. A finding is against the manifest weight of the evidence "only where the opposite conclusion is clearly apparent." Id.
¶ 40 The trial court found respondent was an unfit parent as defined in section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2020)). Section 1(D)(m)(ii) states a parent will be considered an "unfit person" if she fails to "make reasonable progress toward the return of the child to the parent during any [nine]-month period following the adjudication of neglected."
¶ 41 "Reasonable progress" has been defined as "demonstrable movement toward the goal of reunification." (Internal quotation marks omitted.) In re C.N., 196 Ill.2d 181, 211 (2001). This is an objective standard. In re F.P., 2014 IL App (4th) 140360, ¶ 88. The benchmark for measuring a parent's progress toward reunification "encompasses the parent's compliance with the service plans and the court's directives, in light of the condition which gave rise to the removal of the child, and in light of other conditions which later become known, and which would prevent the court from returning custody of the child to the parent." C.N., 196 Ill.2d at 216-17. Reasonable progress exists when the trial court can conclude it will be able to order the child returned to parental custody in the near future. In re L.L.S., 218 Ill.App.3d 444, 461 (1991).
¶ 42 In this case, the State alleged the relevant time period was March 11, 2020, to December 11, 2020. The evidence of respondent's progress, or lack thereof, during that time period included the following. Matykiewicz testified respondent did not (1) participate in an alcohol and drug assessment, (2) consistently submit to random drug drops, (3) successfully complete a domestic-violence program, (4) participate in individual counseling, or (5) consistently attend weekly visitation. With regard to visitation, Matykiewicz said respondent missed more than half of the visits scheduled. With regard to domestic violence, Matykiewicz said respondent was terminated four times from the program due to attendance issues. In Matykiewicz's opinion, at the end of her tenure as caseworker, on December 1, 2020, the minors could not be safely returned to respondent's care.
¶ 43 Although respondent testified she completed four domestic-violence programs during the relevant timeframe, the caseworkers' testimony rebutted that of respondent. Park, Matykiewicz's successor, corroborated Matykiewicz's testimony that respondent had not successfully completed any of the above tasks during the nine-month period.
¶ 44 Given this evidence, the trial court reasonably concluded respondent's progress was not sufficiently demonstrable or of such a quality that the court would be able to return the children to her custody in the near future. See In re Ta. T., 2021 IL App (4th) 200658, ¶ 51. As the court noted, two of respondent's "core services"-domestic violence and substance abuse-were incomplete for lack of participation.
¶ 45 As stated, respondent relies on Gwynne P. to support her assertion that some progress toward completion of her tasks constitutes "demonstrable steps towards the return home of the minors." She claims the fact she "attended" a domestic-violence course, and "internalized what she learned," was sufficient to satisfy the standard set forth in Gwynne P., that respondent made a "minimum measurable or demonstrable movement toward reunification." Gwynne P., 346 Ill.App.3d at 595-96 . As we explained in F.P., we decline to follow Gwynne P. because it applied an incorrect definition of "reasonable progress." F.P., 2014 IL App (4th) 140360, ¶ 88 (noting the correct standard is "at a minimum, measurable or demonstrable movement" is required). As we stated, there is a great distinction between "minimum measurable or demonstrable movement" and "at a minimum, measurable or demonstrable movement" is required. Id. ¶ 87. The comma, or the omission thereof, changes the meaning entirely.
¶ 46 Accordingly, when we review the evidence presented at the fitness hearing and apply the appropriate standard, it is unclear to us that, "in the near future," the trial court would have been able to return the minors to respondent's custody. See L.L.S., 218 Ill.App.3d at 461. We conclude the court's finding respondent had not made reasonable and substantial progress within the meaning of section 1(D)(m)(ii) of the Adoption Act (750 ILCS 50/1(D)(m)(ii) (West 2020)) was not against the manifest weight of the evidence.
¶ 47 This is our holding despite the improper arguments and analysis made by the State in its brief, where the State relied heavily on information contained in status and permanency-review reports-information not otherwise presented as evidence at the fitness hearing. Although the trial court took judicial notice of the prior permanency-review orders in the court file, it did not, and in fact, could not have taken judicial notice of the information presented at permanency-review hearings, including the content in various reports. The hearsay statements in a report, although admissible at the permanency hearing, would be inadmissible hearsay at the fitness hearing, where the formal rules of evidence apply. This court explained the evidentiary requirements, as they relate to a trial court's taking of judicial notice at the fitness hearing, in a recent decision. See In re M.D., 2022 IL App (4th) 210288. There, we provided direction and reiterated the standards regarding the admission of evidence as it relates to judicial notice of information presented earlier in the proceedings. Based on the standards as explained in M.D., we disregard those arguments of the State which relied on the contents of various permanency and status reports.
¶ 48 B. Best-Interest Finding
¶ 49 Respondent claims the trial court's finding it was in the minors' best interests to terminate her parental rights is against the manifest weight of the evidence. She argues "[i]n light of the statutory factors ***, it is clear that [her] parental rights should not be terminated." She claims (1) she demonstrated an ability to care for the minors' needs, (2) they are bonded to her, and (3) they desire to be reunited as a family.
¶ 50 Upon a finding of parental unfitness, the proceedings move to a best interest hearing. At the best-interest hearing, the trial court's focus shifts to the child's interest in securing "a stable, loving home life." In re D.T., 212 Ill.2d 347, 364 (2004). When a best-interest decision must be made, the court shall consider factors listed in section 1-3 of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-3(4.05) (West 2020)). These factors include the child's physical safety and welfare, the development of the child's identity, the child's background and ties, the child's sense of attachments including the sense of security, familiarity, and continuity of affection, the child's wishes and long-term goals, and the preferences of those available to care for the child. Id. A parent's wishes to continue the relationship with the child yields to the child's interests. D.T., 212 Ill.2d at 364.
¶ 51 The trial court may terminate parental rights only upon finding the State proved, by a preponderance of the evidence, the termination of those rights is in the child's best interest. In re Jay. H., 395 Ill.App.3d 1063, 1071 (2009). A reviewing court affords great deference to a trial court's best-interest finding because the trial court is in a superior position to view the witnesses and judge their credibility. In re C.P., 2019 IL App (4th) 190420, ¶ 71. We will not disturb a best-interest determination unless it is against the manifest weight of the evidence. Id. A best-interest determination is against the manifest weight of the evidence only if it is clearly evident the State failed to carry its burden of proof or, in other words, if the finding is "unreasonable, arbitrary, or not based on the evidence presented." (Internal quotation marks omitted.) In re J.H., 2020 IL App (4th) 200150, ¶ 85.
¶ 52 Park testified each minor had been in his or her respective foster home since case opening in 2018, each was thriving in their respective placement, and all seemed to like their home. The foster parents were meeting all of the minors' physical, mental, and emotional needs. According to Park, the minors were bonded to their foster families and all were in loving, safe, and secure placements. Further, the foster parents were willing to adopt to provide each minor permanency.
¶ 53 The trial court was well advised of the minors' circumstances in the foster homes, their feelings toward respondent, and respondent's status. The court appropriately considered these factors presented through testimony before making its decision. Accordingly, we conclude the trial court's findings that termination of respondent's parental rights was in the minors' best interests were not against the manifest weight of the evidence.
¶ 54 III. CONCLUSION
¶ 55 For the reasons stated, we affirm the trial court's judgment.
¶ 56 Affirmed.